We receive questions at our office on a weekly (sometimes daily) basis about Legal Separation in Texas. Most people have talked with friends and family in other states, or have heard in the media about spouses being “legally separated,” and want to find out more. Many folks need time apart, but don’t want to take the big step of getting divorced in hopes of reconciliation after a cooling off period or counseling.
In Texas, we do not have a “legal separation.”
This, however, does not mean that spouses needing time apart don’t have any options. The question that we end up asking these people is why they need the legal separation or what benefit they are seeking by formalizing the separation.
Most of the time, responses fall into one of two categories, both involving the need for some rules. The first is the need for rules about the children while the parties are separated and the second involves the need for rules about the use of property and/or payment of debt and expenses wile the parties are separated.
Rules regarding the kids include setting up with whom they will live during the separation, setting up a possession schedule, providing for support, medical insurance and so on. Regarding property, parties often want something in writing about who will get the use of the family residence, particular vehicles and who will pay the mortgage, expenses, vehicle loans, credit card debt, and so on. Often, regarding property, the parties also want to provide that neither party will expend any of the parties’ property, or incur any new debt, except for ordinary living expenses, until they figure out what they are going to do long-term.
The easiest solution to the need for rules in either category — kids or property — is for one, or both, parties to file a Petition for Divorce and request that Temporary Orders be entered. If the parties already know what they want to do, then they can file a simple Petition and have the Court enter Agreed Temporary Orders, which don’t even require a hearing. While this approach does involve the perceived stigma of having filed for divorce, the Court is not going to force the parties to go through with the divorce just because it is filed. If the parties reconcile, it is a very simple process to dismiss the divorce proceeding.
This method does provide a solution, but it isn’t necessarily a long-term solution. Most Courts have a docket control plan in place that will require that some action be taken in the case on a regular basis, or the Court will dismiss the case (and any Temporary Orders) on it’s own. Usually the Court will give parties 6 months to a year before dismissing the case, but this varies by jurisdiction.
If the need for some ground rules just involves the children, it is possible to file a Suit Affecting the Parent Child Relationship and get temporary, or even permanent, orders regarding the kids. These orders can establish conservatorship, possession, child support, and provisions related to medical insurance and uninsured medical expenses for the kids. This is a good approach when the parents are separating, maybe for a long while, but don’t want to file for divorce.
Regardless of which method a couple chooses, it is important to visit with a good family lawyer about the issue before proceeding. One thing that is important to remember is that in Texas, until you are divorced, you’re still married. This simple maxim has a lot of important ramifications. While you remain married, absent a marital property agreement, the parties are still creating community property and debt. I’ve worked on cases in which the parties were separated for many years and, when they finally got around to filing for divorce, there were huge disputes regarding the division of the property or debt that was accumulated during those years of separation. Further, remember, while you’re separated, any infidelity could be brought up later, if the parties don’t reconcile, during the divorce trial as a reason the ‘faithful’ partner should receive more than half of the community estate. While judges often ignore these issues during the time the parties are separated, there’s no guarantee they will.
There are other solutions to short-term and long-term separations, but the bottom line is that, in Texas, parties wishing to formalize their separation may have to be creative.